Is sovereignty relevant to modern government? This is a question of great theoretical interest, but it is now also of great practical interest. The current debates on the future of the European Union after the British referendum have touched on issues of sovereignty. Many people in the United Kingdom, for example, are worried about what they perceive to be an incursion to sovereignty by European institutions and believe that the withdrawal from the EU will restore sovereignty. This is what Prime Minister May said at a speech to the Conservative Party Conference in September 2016. She promised that leaving the EU will make the United Kingdom once again a fully 'sovereign' state. Does it make sense to speak of sovereignty in this way? Or is the ideal of absolute self-government a mirage? Can the idea of sovereignty carry the political burden placed upon it?
Se exponen en estas notas, fruto de la intervención en el Congreso anual de la Asociación de Constitucionalistas de España (celebrado en Santiago de Compostela en abril de 2019), algunas de las iniciativas de innovación docente desarrolladas desde el Departamento de Derecho Político de la UNED para las asignaturas de la disciplina de Derecho constitucional. Se aborda la dinámica de trabajo del equipo docente de la asignatura, los materiales elaborados y la forma de interactuar con los alumnos en las plataformas virtuales. De forma particular, se analiza la necesidad de progresar en el uso y aprovechamiento de los instrumentos que nos ofrecen las nuevas tecnologías en nuestra labor docente. ; These notes are the result of the intervention in the annual Congress of the Association of Spanish Constitutionalists (Santiago de Compostela, April 2019) and show some of the teaching innovation initiatives developed by the Department of Political Law of the UNED, within the Constitutional Law area. Teaching strategies, resources used and the way to interact with students through virtual platforms are analysed. More specifically, the text focuses on the need of further progress in the use of technological tools so as to improve our teaching practice.
International audience ; The dual constitutionality of human rights, when they are protected through both domestic constitutional and international law, is a well-established dimension of the contemporary practice of human rights. Instead of exploring, as others have done before, how domestic constitutional law has been internationalized by international human rights law, on the one hand, or how international law has been constitutionalized through human rights law, on the other, this chapter addresses domestic and international human rights law together in an integrated fashion. This is what it refers to as transnational human rights law. The transnationality of human rights law corresponds to the complementary processes through which domestic and international human rights laws are made and specified, and hence mutually validated and legitimated. After some clarifications of the concept of transnationality in law in general and in human rights law in particular, the chapter justifies the transnationality of human rights law on democratic and epistemic grounds, before drawing implications for its determination methods, that is, human rights comparison and the transnational human rights consensus it thereby identifies.
In the article the author analyses influence of Lithuanian Constitutional Law on Latvian Constitutional Law. The article is dedicated to the analyses of the some similar aspects of the Constitution (Satversme) of the Republic of Latvia and the Constitution of the Republic of Lithuania from 1922. Besides the main objective the article also considers the information of the Lithuanian influence on the Latvian constitutional praxis in general. In the second section of the article the author describes in general the Lithuanian influence. This influence exists in constitutional legislation as well as in praxis of Latvian Constitutional Court. As the very important aspect in this influence the author mentioned the close cooperation of Latvian and Lithuanian Constitutional Courts nowadays. The third section of the article related to the analyses of the Latvian Constitution (Satversme) from the perspective of the Lithuanian 1922 Constitution. The author in this section discusses content of some similar norms of the both Constitution. Three unclear norms of the Latvian Constitution and praxis of implementation of this norms are analysed in this section of the article. Author also shows similar norms of the Lithuanian 1922 Constitution in which disputed questions are written more clearly.
The outgoing tide of EU law will be Britain's most significant constitutional change in recent times. In an era of uncertainties, the UK Supreme Court proved to be a guardian of the constitutional role of Parliament. The case of Miller, decided in the UK Supreme Court in 2017, proved that point. The highest court in the UK has therefore gained an important place in the global community of Constitutional Courts. This global community finds its legitimacy in the recognition of common values as well as the recognition of national variations. This article analyses to which extent common values, and in particular those found in German law, have influenced decisions in the House of Lords and UK Supreme Court. To do so, the author analyses decisions by the House of Lords and the Supreme Court and extrajudicial speeches by the Justices of the Supreme Court for references to German constitutional law. It identifies and maps the themes that have attracted the attention of the justices of the Supreme Court. More recently, the UK Supreme Court has referred to judgments and extrajudicial writing by German Constitutional Court judges. This was in the context of constitutional questions relating to the tension between membership within the EU and national identity, a theme which has occupied German judges for some time. As well as that, the interpretation of the European Convention on Human Rights has sparked an interest in German jurisprudence, in particular in the principle of proportionality.
Many countries are unsure to decide on legal instruments to use to overcome the crisis caused by the Covid-19 pandemic. Some chose to establish a state of emergency based on the constitution, while others used the applicable law regarding disasters or health crises, implemented new legislation, and issued another community restriction enforcement policy namely PPKM. The stipulation of a state of emergency allows the state to deviate from the rule of law. Therefore, the determination of the emergency status is potentially be misused. The method of this research is normative legal research using statute and conceptual approaches. The result of this research experienced that the Indonesian government chose to use Health Emergency in Law 6 of 2018 and Non-Natural Disaster Emergency in Law 24 of 2007 to deal with the Covid-19 Pandemic regardless of Article 12 of the 1945 Constitution providing provisions for a constitutional emergency. The emergency status does not entirely involve Article 12 of the 1945 Constitution as the basis for its formation. Thus, the term emergency is not a state of emergency as referred to in the study of emergency constitutional law (only de facto not de jure). Although there are restrictions, this certainly does not apply to basic rights, especially to non-derogable rights groups.
The Constitution says nothing about the presidential nominating process and has had little direct role in its evolution from congressional caucuses to party national conventions to our current primary-dominated system. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes. The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process – which may include the primary elections that determine the nominees of the political parties – and the right of the parties to determine how to pick their nominees. Doctrinally, this involves Supreme Court's efforts to reconcile the power of the states to write the rules for state-run elections, including the primary elections that decide party nominations, with the freedom of political association guaranteed to the parties under the First Amendment. This government-party axis affects all nominations for state and federal office. Presidential nominations, however, are distinct. For most elections, federal as well as state, most of the rules are determined by state law. But presidential nominations involve a national-level party decision for a nation-wide office. As a result, national party rules and federal laws factor into shaping the nomination process and add the possibility of conflicts between national- and state-level rules to the more common government-party tensions. Key Supreme Court rulings have held that national party rules and the decisions of the national party conventions take precedence over conflicting state laws and state party decisions. To date, Congress has played a minimal role in this area, and its authority to regulate the nomination process has been contested, but its powers need to be understood if Congress is to be involved in reforming this process. The chapter concludes by suggesting that although the multiplicity of constitutionally-empowered actors may be – and has been – a source of conflict and complexity in the presidential nomination process, it may also be a strength. By permitting so many avenues for change, the constitutional framework creates multiple openings for reform.
This article deals with a basic question: How to set the age limits for the realization of the rights and freedoms, which are guaranteed by constitutions? Usually, the rights of minors are generally regulated in the civil codes. Besides, as usual, the limited position of a minor ends, when the age of 18 years is reached. However, this rule cannot be applied directly in the sphere of constitutional rights and freedoms; otherwise, the bizarre outcome would be, that many basic rights such as life, freedom and social support would be denied to minors. As usual, constitutions do not contain general age limits; they only contain age limits for several positions in the governments or Constitutional courts and for the right to vote. Age limits must be developed exclusively on the basis of constitutional law; the legislation cannot determine these age limits in the sphere of constitutional law, as the lawmaker has to follow the constitution and not in reverse order. In this article, the German and Ukrainian constitutional doctrine concerning the age limits of minors in constitutional law is presented. The comparative analyze shows, that in both constitutional doctrines these limitations are flexible in context with the special constitutional rights or freedoms. This flexible approach is thoroughly developed in the jurisdiction of the Federal Constitutional Court of Germany: the rights and freedoms can be divided in two groups, general rights and freedoms and economic ones. The right of a minor, to realize the general ones depends on the state of the minor's ability to understand, to have the relevant intellectual capacity; basic rights as the right to live have minors from the birth, even as fetus. Economic rights and freedoms can usually be realized from the age of 18; that means, the constitutional doctrine applies the age limits of civil law. However, also in this sphere the realization of rights and freedoms requires some exceptions according to the requirements of rights and freedoms. The Ukrainian doctrine, as ...
This contribution presents an overview of the Belgian Constitutional Court and its activities during 2016. Two constitutional controversies that were at the forefront of political discussions and attracted much media attention are discussed, namely the separation of powers and the refugee "crisis" as well as the Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada. Moreover, the article gives an overview of the main cases of the Belgian Constitutional Court of the past year that may be of interest to an international audience. These cases are divided into the following categories: the Belgian Constitution in Europe and the world, separation of powers, justice and order, ethical issues and hot topics.
In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized jurisdictional context. Instead, the Symposium invited participants to consider directly whether state and federal constitutional law are separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms, or whether state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing shared constitutional norms. The Articles in this issue lie along what we hope will prove to be a new frontier that moves courts and scholars closer to a sustainable interpretive theory of state constitutions, shedding important light on the role of state courts, while also addressing the federal judicial role in a system of dual enforcement.
The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the 'Oxford Handbook of Comparative Constitutional Law' will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends. ; https://larc.cardozo.yu.edu/faculty-edited/1023/thumbnail.jpg
Canadian constitutional law has been shaped by tacit assumptions about the philosophical foundations of the Constitution, and also by the articulate theorizing of judges, legal scholars, and legal practitioners. We discuss the assumptions behind the country's choice in 1867 of a distinct form of federalism, a parliamentary form of government very different from American republicanism, and a role for judges (particularly in adjudicating the federal division of powers, and in their innovative reference jurisdiction) that judges had never had in the United Kingdom Constitution. The principles of parliamentary government and of federalism, while giving the Constitution a remarkably robust framework, developed in a changing context with the end of Imperial governance. We discuss those developments, and ways in which the judges' role as theorists of the Constitution—enhanced by the Constitution Act, 1982—has burgeoned in that changing context, through their approach to the principles of the Constitution.
In the last few decades, we have witnessed the renaissance of Comparative Constitutional law as field of research. Despite such a flourishing, the methodological foundations and the ultimate ratio of Constitutional comparative law are still debated among scholars. This article starts from the definition of comparative constitutional law given by one of the most prominent comparative constitutional law scholars in Italy, prof. Bognetti, who defined comparative constitutional law as the main joining ring between the historical knowledge of the modern law and the history of the humankind in general and of its various civil realizations. Comparative constitutional law is in other words a kind of mirror of the "competing vision of who we are and who we wish to be as a political community" (Hirschl), reflecting the structural tension between universalism and particularism, globalization and tradition. The article aims at addressing the main contemporary methodological challenges faced by the studies of the field. The article argues that contemporary comparative constitutional studies should address these challenges integrating the classical "horizontal" comparative method with a vertical one - regarding the international and supranational influences on constitutional settings - and fostering an interdisciplinary approach, taking into account the perspective of the social sciences.
Darbā ir aplūkots pārstāvniecības institūts konstitucionālajās tiesībās, tā īpatnības, vēsturiskā attīstība un saturs. Pārstāvniecība tiek analizēta gan, balstoties uz teorētisko bāzi, gan arī dažādu pasaules valstu normatīvajiem aktiem, kā arī statistiku par vēlēšanu rezultātiem, dalību vēlēšanās, dažādu tehnoloģiju izmantošanu vēlēšanu procesā. Darbā tiek analizētas pārstāvniecības izpausmes proporcionālajā, jauktajā un mažoritārajā vēlēšanu sistēmās, izmantojot kā vērtēšanas kritērijus autorizēto pārstāvniecību (vēlētāju skaits procentuālā izteiksmē no reģistrētajiem, kas nobalsojuši par valdībā pārstāvētajām partijām), nodoto balsu attiecību pret reģistrēto vēlētāju skaitu, proporcionalitāti, kā arī, kā konkrētā normatīvā regulējuma situācijā realizējas vēlētāja saikne ar deputātu periodā starp vēlēšanām, ņemot vērā to, ka pārstāvniecība ir nepārtraukts process. Balstoties uz konstitucionālo normatīvo regulējumu, tiek salīdzināti un analizēti pārstāvniecības ierobežojumi, kas attiecas uz piederību konkrētai sabiedrībai, kompetenci un autonomiju. Liela uzmanība darbā tiek pievērsta paša pārstāvniecības institūta izpētei, analizējot tā struktūru, dimensijas, efektivitātes nosacījumus. Tiek pētīts arī, kā pārstāvniecības kvalitāti ietekmē tādi faktori kā obligātā balsošana, elektroniskā balsošana, vēlēšanu apgabalu lielums, procentu barjera. Darbā ir pamatota pārstāvniecības konstitucionalitātes, nepārtrauktība laikā, cikliskais process, kā arī zināma paražu tiesību ietekme uz vēlētāja un deputāta sadarbības procesu periodā starp vēlēšanām. Sieviešu un nacionālo minoritāšu pārstāvniecība tiek aplūkota salīdzinošā aspektā, balstoties uz pieredzi valstīs ar atšķirīgu demokrātijas attīstības ilgumu un procesu, dažādām vēlēšanu sistēmām. Kopsavilkumā ir iekļautas vairākas rekomendācijas par pārstāvniecības regulējuma pilnveidošanai Latvijā. Tā kā pārstāvniecības proporcionalitāte esošās vēlēšanu sistēmas ietvaros visumā ir atbilstoša proporcionālās vēlēšanu sistēmas prasībām, uzlabojama ir vēlētāju un deputātu sadarbība, kas pārstāvniecību padarītu efektīvāku. ; The present paper examines the institution of representation in constitutional law, its peculiarities, historical development and contents. Representation is analysed from different points of view: based on the theoretical framework, and on the laws and regulations of different countries in the world, as well as on the statistical data of the election results, participation in elections, and the application of different techniques in the process of elections. The work analyses the manifestations of representation in the proportional, mixed and plurality system applying the following criteria for evaluation: authorized representation ( the number of voters in per cent of the votes cast and the number of registered voters), the proportion, as well as the form of the relationship peculiar to each situation of the normative regulation between the voter and the parlamentarian within the time between the elections, taking into consideration that representation is a continuous process. The restrictions of representation concerning affiliation to a particular group of society, competence and autonomy are compared and analysed on the basis of the constitutional regulation. Great attention in this work is paid to the investigation of the very institution of representation through the analysis of its structure, dimensions, terms of effectivity. It is studied as well how the quality of representation is influenced by such factors as compulsory voting, electronic voting, the size of the electoral district, the percentage threshold. The work justifies the temporal continuity of the constitutionality of representation, its cyclic process, as well as the impact of traditional practice-based rights upon the process of collaboration of the voter and the parlamentarian during the period of time between elections. The representation of women and national minorities is treated comparatively on the basis of the experience of the countries with different duration and process of democracy and various electoral systems. The summary of the work contains several recommendations about the improvement of the regulation of representation in Latvia. Since the proportion of representation within the existing system generally meets the requirements of proportional electoral system, improvement might be carried out within the sphere of collaboration between the voters and parlamentarians in order to make the representation more effective.
The present thesis proposes to return to the place of fiction within constitutional law. It will be a question here of considering fiction as a tool used by the constitutional judge in order to respond to the specificities of the supreme norm. Although fiction is never invoked by the judge, it remains present in his reasoning. The research work that has been written attempts to come back to the constituent's relations with regard to fiction, which allows the constitutional text a certain flexibility, necessary to be part of a logic of sustainability. The Constitution occupies a special place within the legal order. It would have such a value that it would become unalterable. Nevertheless, this specificity would have an impact on its practice, in particular when the supreme standard would be confronted with the evolutions of the company. Fiction would offer an alternative to the constitutional judge to apply the values provided for by the standard, while allowing him to free himself from the rigidity imposed by the written word.However, there is no question of proposing a cataloging of different fictions, which would potentially be used. It will be a question here of observing the logics, which can animate, for example, the constitutional judge, when he uses, consciously or not, fiction. The place of fiction within the supreme norm appears to be revealing of the very nature of law. An opposition would thus be created, between the law which is considered as the representation of the real and the fiction, which leads the constitutional judge on more uncertain grounds. Fiction, however, appears to be a necessity since it makes it possible to transcribe and support the logic of the constitutional judge. This thought becomes intelligible in order to allow a better understanding of constitutional law. ; La présente thèse se propose de revenir sur la place de la fiction au sein du droit constitutionnel. Il sera ici question de considérer la fiction comme un outil employé par le juge constitutionnel, afin de répondre aux ...
